Citation Nr: 1227875
Decision Date: 08/13/12 Archive Date: 08/21/12
DOCKET NO. 07-25 484 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia
THE ISSUES
1. Entitlement to service connection for a right knee disorder, to include as secondary to service-connected residuals of a right ankle fracture/sprain.
2. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected residuals of a right ankle fracture/sprain.
3. Entitlement to service connection for a right foot disorder, to include as secondary to service-connected residuals of a right ankle fracture/sprain.
REPRESENTATION
Veteran represented by: Georgia Department of Veterans Services
ATTORNEY FOR THE BOARD
L. Edwards, Associate Counsel
INTRODUCTION
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The Veteran served in the Army on active duty for training (ACDUTRA) from October 1977 to January 1978. The Veteran had active service from November 1978 to December 1981. The Veteran had additional reserve service in the National Guard.
This matter comes before the Board of Veterans' Appeals (BVA or Board) from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran now resides in Georgia, so the matter is now handled by the RO in Atlanta, Georgia.
In January 2010 and May 2011, the Board remanded these claims for additional development. Unfortunately, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required.
The issues of whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left wrist disorder, and entitlement to aid and attendance based on nervous sleep apnea and fibromyalgia have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). See May 2012 statement. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.
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REMAND
The Veteran is seeking entitlement to service connection for a right knee disorder, a left knee disorder, and a right foot disorder.
The Board notes that the Veteran was granted service connection for residuals of a right ankle fracture/sprain in a February 2011 rating decision.
The Board is required to consider all issues raised either by the claimant or by the evidence of record. Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008). When determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).
Secondary service connection shall be awarded when a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 446 (1995). Unfortunately, although it will result in an additional delay in adjudicating the Veteran's claims, another remand is in order to provide full consideration of all potential theories of entitlement.
The Board therefore finds a remand is necessary to obtain medical opinions regarding the nature and etiology of the claimed disorders.
Additionally, given the Veteran's more recent theory of secondary service connection, he should be sent a new letter notifying him of the information and evidence necessary to substantiate a claim of service connection on a secondary basis to comply with the Veterans Claims Assistance Act of 2000 (VCAA). See Pub. L. No. 106-475, 114 Stat. 2096 (2000); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).
Finally, all updated VA and private treatment records should be obtained and associated with the claims file.
Accordingly, the case is REMANDED for the following actions:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.)
1. Obtain and associate with the claims file all updated VA and private treatment records.
2. Send a new VCAA notice letter to the Veteran. The letter should notify him of the information and evidence necessary to substantiate his claims of service connection for a right knee, left knee, and right foot disorders. Notice regarding secondary service connection must be included. The letter should also contain notice of the manner in which both disability ratings and effective dates are assigned for awards of disability benefits. See Dingess/Hartman, 19 Vet. App. at 473. The Veteran should be given an opportunity to respond to the notice, and any additional information or evidence received should be associated with the claims file.
3. Obtain addendum opinions to the opinions provided in June 2011 and October 2011. If deemed necessary by the examiners, afford the Veteran a VA examination for his bilateral knees and right foot.
Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished.
The examiner is requested to review all pertinent records associated with the claims file.
The examiner should offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent):
a) that the Veteran's right knee disorder had its onset during service, is causally related to his active service, OR is proximately due to or aggravated by his service-connected right ankle disability, his left knee disorder, or his right foot disorder.
b) that the Veteran's left knee disorder had its onset during service, is causally related to his active service, OR is proximately due to or aggravated by his service-connected right ankle disability, his right knee disorder, or his right foot disorder.
c) that the Veteran's right foot disorder had its onset during service, is causally related to his active service, OR is proximately due to or aggravated by his service-connected right ankle disability or his right or left knee disorder.
All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.
The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed.
The examiner must acknowledge and discuss any lay evidence of a continuity of symptomatology.
If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.).
If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion.
4. The Veteran is hereby notified that it is his responsibility to report for the examinations scheduled in connection with this REMAND and to cooperate in the development of his case.
5. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated.
If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response.
Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).